The Real Source of Nursing Home Liability: Poor Care

AON Risk Solutions published a new report last week that claims Kentucky is the worst state in the nation for nursing home liability expenses, both in terms of the expenses per bed and in the amount of litigation against nursing homes.

Not so fast. As Lexington lawyer Sheila Hiestand, president of the Kentucky Justice Association, points out, even if the report is true, that doesn’t back the industry’s claim that the lawsuits being filed are frivolous. Nursing homes that adhere to high standards of care, hire sufficient qualified staff and maintain their facilities, are sued less often than those who don’t. Nursing homes that fail to care for their patients properly face the risk that neglected or abused nursing home residents and their families will file lawsuits.

Hiestand points out that the report itself acknowledges that reduced Medicare costs are making it more difficult for nursing homes to maintain facilities, make improvements and hire and train qualified caregivers.

“They give the answer right there in their own report. If the investment in caregivers is reduced, liabilities increase,” she says. “Translation? If you don’t work to improve the quality of care that is provided in your facility, you run the risk of causing harm to a patient, which could lead to a lawsuit.”

The report also argues that nursing homes in states that have introduced tort reform have lower liability costs. Even if true, so what? All this tells us is that those states restrict a jury’s right to decide to what degree a nursing home should compensate the victims of abuse and neglect. That means that nursing homes that fail to meet high standards can save money on liability costs. Do they put that money back into patient care? Are residents of those homes more likely to be the victims of abuse and neglect? The report is silent on these questions. Nursing home owners may care about their bottom line, but the rest of us care about ensuring that nursing home residents, some of the most vulnerable members of our society, receive the care they deserve.

All nursing homes can save money on liability costs by hiring more qualified staff and ensuring that their patients live in a safe and healthy environment. The idea that we need to limit a resident’s right to hold a nursing home accountable for its actions in a civil trial in order to help the nursing home save money is ridiculous.

We should note that AON nursing home report was prepared in conjunction with the American Health Care Association, an organization that represents the interests of nursing homes – hardly the most objective partner. The data in the report was supplied by providers themselves, and covers only 16% of the nursing home beds in the United States.

In previous years, Hiestand points out, numerous errors have appeared in these reporting numbers. The report provides data for only a few states, and groups the others together into an “all the rest” category. The number of providers who responded in each state veers wildly – the numbers reflect only 10% of the nursing home beds in California, for example, versus 32% of the beds in Kentucky. How can you determine that Kentucky is the ‘worst’ state for nursing home litigation when you have three times the data for one state versus another? And, of course, the fact that the data is self-reported points to other problems as well. It’s possible, for example, that nursing homes that have experienced litigation are either more or less likely to respond than those that haven’t, leading to skewed data. In short, the statistics in this report are not as sound as they might first seem.

It would be possible to do a well-designed study that sheds light on whether litigation against nursing homes is generally valid or frivolous. For example, AON could have looked to see whether nursing homes that face more litigation have more deficiencies in state or federal inspections. Wait – that study has already been done. In an article published in The New England Journal of Medicine earlier this year, authors showed that “The odds of being sued were significantly higher among nursing homes with more deficiencies…and those with more serious deficiencies…than the state average.”

The AON report doesn’t tell us anything except that the nursing home industry has a vested interest in promoting tort reform.

Sheila Hiestand is an attorney at Hughes & Coleman whose practice is dedicated to representing victims of personal injury, medical malpractice and nursing home neglect or abuse in Kentucky. For more information, see Hughes & Coleman’s Kentucky nursing home neglect website.